U.S. v. Miller, 84-1131
| Decision Date | 15 May 1985 |
| Docket Number | No. 84-1131,84-1131 |
| Citation | 753 F.2d 1475 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Daniel Marcus MILLER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas E. Flynn, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Diana Samuelson, San Francisco, Cal., for defendant-appellant.
Appeal from the United States District Court for the Eastern District of California.
Before SCHROEDER, FLETCHER, and CANBY, Circuit Judges.
Miller appeals his conviction for manufacturing controlled substances, challenging a search of his property by federal agents. The district court denied Miller's suppression motions, and we affirm.
On June 23, 1983, agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") and the Drug Enforcement Agency ("DEA") searched Miller's property, a forty-one acre ranch known as "Cow Bell Mines," pursuant to a federal warrant. They discovered evidence of a methamphetamine laboratory concealed under a garage. They also found three handguns, one equipped with a silencer, in the laboratory. The laboratory apparently had not been used for some time, but the odor characteristic of such laboratories was still very powerful.
Based on the evidence seized in the search, Miller was arrested and charged under a five-count indictment with manufacture of controlled substances, 21 U.S.C. Sec. 841(a)(1) (1982), and possession of firearms by a prohibited person, 18 U.S.C.App. Sec. 1202(a)(1) (1982).
In the trial court, Miller moved to suppress the evidence seized in the June 23 search. He alleged that the warrant was not supported by probable cause and that the federal agents had lied or deliberately disregarded the truth in the affidavit filed in support of the warrant. The district court conducted an evidentiary hearing concerning Miller's allegations of falsehoods. After careful consideration, the court denied Miller's suppression motions. Miller then pleaded guilty to two counts of the indictment under Fed.R.Crim.P. 11(a)(2). The prosecution dropped the other charges.
Miller contends that the federal agents lied or deliberately disregarded the truth in the affidavit filed in support of the search warrant. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). His challenge arises from statements in the affidavit attributed to a confidential informant (designated as CRI(2) in the affidavit).
The affidavit disclosed that CRI(2) had spoken to AFT Agent Dower and DEA Agent Gregory on June 16, 1983. CRI(2) stated that he had observed the Cow Bell Mines property almost daily over a thirty-day period ending June 6, 1983. CRI(2) saw three men and two women on the property. On numerous occasions, CRI(2) saw the men carrying firearms. CRI(2) observed two of the men inject a substance into their arms which CRI(2) believed to be methamphetamine. CRI(2) detected odors near the property, which he knew from prior experience to be associated with the manufacture of methamphetamine. CRI(2) also encountered "trip wires" on or near the property. Finally, CRI(2) identified Miller, his wife, and the Cow Bell Mines property from photographs given to him by the federal agents.
After his arrest, Miller discovered that the person identified as CRI(2) in the affidavit was Michael Becker. He obtained a sworn statement in which Becker denied relating any of the information attributed to him in the affidavit. On the basis of this statement, the district court granted Miller's motion for a Franks hearing.
At the hearing, Becker again denied providing the information attributed to him in the affidavit. Other evidence showed that Becker was arrested by county authorities on June 7, 1983, and was held in connection with investigation of possession of a stolen vehicle, stolen credit cards, an illegal weapon, and a stolen license plate. County officers interviewed approximately fifteen persons in connection with this investigation. One of the persons interviewed told officers that Becker had shot his own dog in the face with a shotgun and that Becker was mentally unstable. Another person told officers that Becker was crazy and had threatened him with a shotgun. The evidence concerning these alleged incidents was very sketchy.
County officers obtained a teletype report from Oregon authorities indicating that Becker had been serving a five-year sentence for illegal possession of a firearm and for escaping from an Oregon penitentiary. County officers also obtained a California "rap sheet" detailing other convictions.
County officers told agents Dower and Gregory that Becker was a fugitive from Oregon who had been convicted of narcotics and firearms violations. They also told Dower and Gregory about the charges for which Becker had been arrested, but they did not mention the reports that Becker had been acting strangely or that some people considered him mentally unstable. The federal agents did not make any background checks on Becker.
It also came out in the Franks hearing that Becker was convicted of perjury in Oregon in 1981. Neither the Oregon teletype nor the California rap sheet mentioned the perjury conviction. Neither federal nor county officers were aware of it until the Franks hearing.
Miller contends that federal officers Bertolani (the affiant), Dower, and Gregory exhibited reckless disregard for the truth in several respects: (1) they failed to discover that Becker had been convicted of perjury; (2) they did not ask county officers about the circumstances of Becker's arrest and therefore did not learn of Becker's "bizarre" behavior as described by witnesses who were interviewed; and (3) they did not review Becker's rap sheet. 1
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that a defendant could challenge a facially valid search warrant if he showed that (1) the affidavit contained intentionally or recklessly false statements, and (2) the affidavit purged of its falsities would not be sufficient to support a finding of probable cause. Id. at 171-72, 98 S.Ct. at 2684-2685. The district court concluded that Miller failed to satisfy the first prong of the Franks test. Applying de novo review, this conclusion was not clearly erroneous. See United States v. Ritter, 752 F.2d 435, 439 (9th Cir.1985) ().
Franks requires that a defendant show intentional falsehoods or reckless disregard for the truth. "Allegations of negligence or innocent mistake are insufficient." Franks, 438 U.S. at 171, 98 S.Ct. at 2684; accord United States v. Davis, 714 F.2d 896, 899 n. 5 (9th Cir.1983); United States v. Carlson, 697 F.2d 231, 238 (8th Cir.1983); see United States v. Hole, 564 F.2d 298, 302 (9th Cir.1977) (pre-Franks case).
We agree with the district court that Miller's allegations amount to no more than negligence. It might have been prudent for the federal agents to check on Becker's background and criminal record, but their failure to do so is not reckless disregard. The federal agents knew of the charges for which Becker was being held, and they knew of his Oregon narcotics and firearms convictions. They observed Becker's demeanor and behavior during the interview and testified that he appeared rational and coherent.
The linchpin of Miller's challenge is Becker's perjury conviction. But none of the officers, county or federal, was aware of the perjury conviction until the day the Franks hearing was held. It was not mentioned in the California rap sheet nor in the teletype from Oregon. The officers made diligent efforts to find out about Becker's background. Their failure to uncover the perjury conviction can be considered no more than negligence, if that. 2
Miller also contends that the affidavit was insufficient to support the magistrate's finding of probable cause to search.
In addition to Becker's statements, the affidavit contained information concerning a search of Miller's property two years earlier, in November 1981, and information received after the 1981 search from an unnamed informant (designated as CRI(1)) and another individual.
In 1981, ATF agents first received information that a methamphetamine laboratory was being operated on Miller's property. In November of that year, they searched the property pursuant to a federal warrant. The agents did not find any laboratory, but they did find firearms and small quantities of methamphetamine. Miller was convicted of a felony, possession of a firearm by a prohibited person.
Sometime subsequent to the execution of the warrant CRI(1) told the affiant that Miller had said the "Feds" missed the laboratory on the Cow Bell Mines property during the November 1981 search. In the summer of 1982, CRI(1) also said he had learned in conversations with members of the Hells Angels Motorcycle Club 3 that Miller was seeking chemicals to manufacture methamphetamine. In late 1982, CRI(1) said that Miller's lab was underground and that Miller was working with another Hell's Angel, Kenneth Owen, in the operation. Within the three months preceding the date of the application for the search warrant, CRI(1) said the lab was still in operation.
The affiant also received information from Sergey Clement Walton, another Hell's Angel. Walton was arrested in May 1981, and evidence uncovered during that arrest led to the November 1981 search of the Cow Bell Mines property. After the search, Walton stated that he had learned from Laufey Gayle Owen (Kenneth Owen's wife) that the federal agents had missed the methamphetamine laboratory on Miller's property and that the...
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